Moore v. Cornell

68 Pa. 320 | Pa. | 1871

The opinion of the court was delivered,

by Sharswood, J.

A mortgage, though in form a conveyance of land, in virtue whereof the mortgagee may maintain ejectment, and recover and hold the possession until paid, is nevertheless in substance only a security for a debt. It is but a chose in action,— personal estate. A devise of a man’s personal estate carries with it all his mortgages. A mortgage is discharged by payment, and an assignment of the debt transfers the right to the mortgage itself; for whatever will give the money secured by the mortgage, will carry the mortgaged premises along with it: Wentz v. Dehaven, 1 S. & R. 317; Rickert v. Madeira, 1 Rawle 329; Asay v. Hoover, 5 Barr 35; Craft v. Webster, 4 Rawle 255; Simpson v. Ammons, 1 Binn. 175; Smith v. Shuler, 12 S. & R. 240. Before the Married Woman’s Act of April 11th 1848, Pamph. L. 533, it was well settled that the husband could by an assignment for a valuable consideration, without the consent of his wife, transfer his wife’s choses in action including her mortgages, and thereby bar her right if she survived him. The husband might sell his wife’s chose in action, but could not give it away freed from the incidents of the marriage: Hartman v. Dowdel, 1 Rawle 281; Siter’s Case, 4 Id. 468; Webb’s Appeal, 9 Harris 248. The Act of 1848 took away this power of the husband by enacting that “ every species and description of property, whether consisting of real, personal or mixed, which may be owned by or belong to any single woman,, shall continue to be the property of such woman as fully after her marriage as before, and all such property, of whatever name or kind, which shall accrue to any married woman by will, descent, deed of conveyance or otherwise, shall be owned, used and enjoyed by such married woman as her own separate property, and the said property, whether owned by her before marriage or which shall accrue to her afterwards, * * * shall not be sold, conveyed, mortgaged or transferred, or in any manner encumbered by her husband without her written consent first had and obtained, and duly acknowledged before one of the judges of the Courts of Common Pleas of this Commonwealth, that such consent was not the result of coercion on the part of her said husband, but that the same was voluntarily given and of her own free will.” It will be observed that the language of this act is precise that the property of such married woman “shall be owned, used and enjoyed” — it does not say aliened or transferred. Indeed the great object of the Act of 1848 was to secure the property of a married woman against her husband and his creditors. It did not confer upon her any power or capacity which she did not possess before, except that of making a will, and of binding her estate by a contract for necessaries, or perhaps, though this, for one, I doubt, a contract for the repair or improvement of her real estate. Hence it was held by this court in Stoops v. Blackford, 3 Casey 213, that an assignment of a mortgage by a married woman without her husband joining in the instrument is void. In that case our brother Williams, in the District Court of Allegheny county, in his opinion below said: “ Nor did it (the Act of 1848) authorize the mortgage, transfer or assignment of the wife’s estate by the husband, except in the mode prescribed by the act. The mortgage in this case was not transferred or assigned in accordance with the provision of the statute which requires the wife’s written consent, duly acknowledged before one of the judges of the Common Pleas, to be first obtained.” The judgment in that case was affirmed in this court. It follows necessarily that an assignment by the husband and wife, without the acknowledgment required by the act, is as invalid as an assignment by either alone would be. This provision was aimed not merely at the legal power which the husband before possessed, but at the influence which he could still continue to exercise, and was but the carrying out of the settled policy of our jurisprudence in regard to the deeds and conveyances by married women of their real estate. The case of Haines v. Ellis, 12 Harris 253, holds no other doctrine. It was there decided that a deed executed by husband and wife, and acknowledged as required by the Act of 1770, was a valid conveyance of the wife’s interest. “ The Act of 1848, as now understood,” said Chief Justice Lewis, “ makes no change in the mode of alienation, although it does in the nature of the wife’s estate. A married woman’s estate can only be conveyed or affected either by uniting with her husband in a deed separately acknowledged according to the Act of 1770, or by some act of the husband under ‘a previous written consent of the wife,’ duly acknowledged according to the Act of 1848. The object of the statute last named was to protect her estate from being encumbered or conveyed by her husband, or taken by his creditors against her consent, and not to enable her to sell, encumber or give it away without his consent.” It does not appear in that case how the deed was acknowledged, nor was it material, for it was provided by the 10th and 11th sections of the Act of April 9th 1849, Pamph. L. 526, that all deeds of married women executed and acknowledged according to the provisions of existing laws previous to the Act of 1848, should be deemed sufficiently executed and acknowledged. This act was retrospective as well as prospective. See also the Act of April 18th 1853, § 23, Pamph. R. 573.

Judgment affirmed.